Does your capital client “look deathworthy”?

If your client is African American, jurors will demonstrate to you that the answer is much more likely to be yes. And the more stereotypically black (with darker skin and wider nose)—the more likely the death penalty will be assigned. Hard to stomach? Yes. Hard to believe? We didn’t think so. But it is pretty disturbing. Let’s look at the research.

Stanford psychologist Jennifer Eberhardt had students rate “how black” different photos of African American males were based on their assessment of facial features, hair and skin color. What the students did not know is that all the photos were of convicted murderers in the Philadelphia area from between 1979 and 1999. All of the men had faced the death penalty. When analysis was complete—and the researchers controlled for other factors such as egregious nature of the crime, aggravating circumstances and the SES of killer and victim—the more ‘black’ the man in the photo looked to Stanford students—the more likely he was to have received the death penalty at his trial.

Further—if the black male had killed a white victim—his likelihood of receiving the death penalty was even higher! When the victim was also black—the ‘blackness’ of the murderer made no difference in sentencing. Specifically, in 44 cases where black males murdered white victims, those who looked ‘less black’ were sentenced to death only 24% of the time while those who looked ‘more black’ were sentenced to death 57% of the time. More than double.

We’ve written a lot about the importance of making your client similar to jurors and issues of racial bias. It’s hard to find a more disturbing and specific example of why this is important in the courtroom. Jurors in capital cases are asked to consider the evidence and circumstances as they assess punishment. Any judgment as to the murderer’s ‘blackness’ would likely take place outside the juror’s awareness. (We hope.)

Our experience in helping trial lawyers mitigate racial bias would say you need to take a look at your client. If your client has more stereotypically African American features—sharing this research with jurors could be a powerful deterrent to a death penalty decision.

Jurors want to do the right thing. In the powerful and stressful demands of a death penalty deliberation—they will (as would we all in similar circumstances) fall back on core assumptions and stereotypes to make decisions. It will happen outside their conscious awareness. Unless. Unless you make them aware and thereby help them consider facts and evidence as they make difficult decisions.